Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27926/95

by Lidia SZAFARCZYK

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 March 1994 by

Lidia SZAFARCZYK against Poland and registered on 20 July 1995 under

file No. 27926/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1940, is retired. She

resides in K*pno.

The facts of the case, as submitted by the applicant, may be

summarised as follows:

1. Particular circumstances of the case

In 1967 the applicant's grandmother died, having apparently

bequeathed a part of the plot which she owned in Olszowa to the

applicant's mother and the remainder to her other two children.

On 12 June 1973 the applicant's uncle F.S. obtained a decision

of the K*pno Mayor declaring that by virtue of the Agricultural

Property Regulation Act of 1971 ("the 1971 Act") he had become the

owner of the plot concerned. Apparently later the applicant and her

mother de facto possessed the plot.

In 1986 the applicant's mother died, having bequeathed all her

property to the applicant. Subsequently the applicant obtained a court

judgment, confirming that she was the sole heir of her mother.

On 8 September 1989 the K*pno District Court (S*d Rejonowy)

ordered that the applicant vacate the property concerned as it was F.S.

who was the owner and she did not possess any title thereto.

On 30 October 1989 the Minister of Justice refused to file an

extraordinary appeal against this judgment.

In June 1990 the applicant was evicted from the property.

On 6 June 1991 the applicant requested the Kalisz Governor

(Wojewoda) to institute proceedings in order to annul the decision of

12 June 1973. She submitted that this decision had been in flagrant

breach of law, given that F.S. had never de facto possessed the

property. It had been first her mother and from 1986 the applicant

herself who had possessed the plot.

On 9 January 1992 the Governor discontinued the proceedings. He

considered that since 1 January 1992 the State Treasury Land Property

Act of 19 October 1991 ("the 1991 Act") specifically prohibited the

institution or continuation of proceedings in order to annul decisions

on ownership of agricultural real property which had been issued in

accordance with the 1971 Act.

The applicant appealed to the Minister of Agriculture against the

decision to discontinue the proceedings.

On 15 February 1993 the Minister of Agriculture upheld the

Governor's decision of 9 January 1992. He indicated that, in

accordance with Article 63 of the 1991 Act, the general provisions of

the Code of Administrative Procedure concerning amendment or annulment

of final administrative decisions did not apply to decisions confirming

the ownership of agricultural real property issued in accordance with

the 1971 Act.

The applicant filed an appeal to the Supreme Administrative Court

(Naczelny S*d Administracyjny), complaining that the decision of the

Minister deprived her of her property.

On 10 June 1994 the Supreme Administrative Court dismissed the

appeal. The Court considered that its only task was to examine whether

administrative decisions were lawful. In the present case the

Minister, in deciding that the lawfulness of the 1973 decision could

not be reexamined and that the proceedings had to be discontinued, had

properly applied Article 63 of the 1991 Act, which specifically

excluded judicial review of such decisions.

2. Relevant domestic law and practice

Article 155 of the Code of Administrative Procedure of 1960

permits the amendment or annulment of any final administrative decision

at any time where necessary in the general or individual interest if

this is not prohibited by specific legal provisions. In particular,

a final administrative decision can be annulled if it has been issued

by an authority which had no jurisdiction or without a legal basis or

contrary to the applicable law.

Article 63 of the State Treasury Land Property Act of

19 October 1991 provides that the general provisions of the Code of

Administrative Procedure concerning amendment or annulment of final

administrative decisions do not apply to decisions confirming the

ownership of agricultural real property issued in accordance with the

Agricultural Property Regulation Act of 1971.

A decision of the Supreme Court of 30 June 1992 states that

Article 63 of the State Treasury Land Property Act does not confer a

right to claim before a civil court that such decisions are invalid

(decision III CZP 73/92).

COMPLAINTS

The applicant complains that the Supreme Administrative Court did

not examine the merits of her case. She further complains that she was

deprived of the property of the plot concerned. No provisions of the

Convention are invoked.

THE LAW

1. The applicant complains that the Supreme Administrative Court did

not examine the merits of her case. The Commission has examined this

complaint under Article 6 para. 1 (Art. 6-1) of the Convention which

in its relevant part reads:

"In the determination of his civil rights and obligations (...)

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission observes that in the present case the legislation

at issue, i.e. the 1991 State Treasury Land Property Act, came into

force on 1 January 1992 as regards non-availability of judicial review

in the cases arising out of the application of the Agricultural

Property Regulation Act of 1971. It is true that the 1991 Act had

procedural aspects in that it expressly excluded access to court in

such cases. However, it also affected the applicant's situation in

that it ultimately extinguished any possible claim to property of the

land in question that the applicant might have had until

1 January 1992. This was confirmed by the Kalisz Governor's decision

of 9 January 1992. Poland recognised the competence of the Commission

to receive individual applications "from any person, non-governmental

organisation or group of individuals claiming to be a victim of a

violation of the rights recognised in the Convention through any act,

decision or event occurring after 30 April 1993". The Commission

observes that the applicant ceased to have any arguable civil right at

the time when the decision of the Kalisz Governor was taken.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains under Article 1 of the Protocol

No. 1 (P1-1) that she was deprived of her property rights.

Article 1 of Protocol No. 1 (P1-1) to the Convention in its

relevant part reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law."

The Commission recalls that Poland ratified Protocol No. 1 to the

Convention on 10 October 1994. In accordance with the generally

recognised principles of international law, the Commission is not

competent to examine complaints relating to alleged violations of the

Protocol by acts, decisions or events that have occurred prior to this

date.

The Commission recalls that in the present case the

administrative proceedings were discontinued by the Kalisz Governor on

9 January 1992. On 15 February 1993 the Minister of Agriculture upheld

the Governor's decision. The Supreme Administrative Court dismissed

the applicant's appeal against this decision on 10 June 1994. These

acts all occurred prior to 10 October 1994, i.e. the date of the

ratification by Poland of Protocol No. 1 to the Convention. Insofar

as the applicant's complaint might be understood as implying that these

decisions created a continuing situation of deprivation of her property

rights, the Commission recalls that deprivation of property rights is

in principle an instantaneous act and does not produce a continuing

situation of "deprivation of property" (No. 7742/76, Dec. 4.7.78,

D.R. 14 p. 146; No. 26078/94, Dec. 17.5.95, unpublished).

It follows that this complaint is outside the competence ratione

temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SZAFARCZYK v. POLAND

SZAFARCZYK v. POLAND

LEXI